The claimant came to the U.S. from England and became unable to work
after 4 years of employment here. Her application for Disability Insurance
Benefits was denied by the Social Security Administration since the
claimant failed to meet the insured status requirements. She contended the
requirement discriminated unfairly against immigrants who became disabled
after only a short time in this country. The U.S. Supreme Court in
Flemming v. Nestor, 363 U.S. 603 (1960) (see
SSR 60-1, CB 1960-1961,
p. 87) determined that a Social Security statute may be unconstitutional
if the statute imposes a patently arbitrary classification utterly lacking
in rational jurisdiction. In enacting the disability insured to prevent
the dissipation of the Social Security Trust Fund by those groups who have
made limited contributions to the fund . . . "Held, the insured
status provisions "do not involve a patently arbitrary classification
utterly lacking in rational jurisdiction within the meaning of Flemming
v. Nestor, supra," and are not unconstitutional.

SWEIGERT, District Judge:

This is an action brought in pro per for review of the final
determination of the Secretary of Health, Education, and Welfare, that
plaintiff is not entitled to disability benefits, brought under 42 U.S.C.
§ 405(g) of the Social Security Act. Plaintiff alleges that defendant's
decision denying eligibility for disability benefits, is based on
unconstitutional statutes and regulations and is not supported by the
evidence; she seeks reversal or modification of the Secretary's decision
so as to grant plaintiff such benefits.

The case is now before the court on plaintiff's and defendant's motions
for summary judgement based on the administrative record on file
herein.[1]

In an action of this kind, the court's jurisdiction under 42 U.S.C. §
405(g) is limited to determining whether or not the Secretary of HEW's
findings are supported by substantial evidence and are in accord with
applicable law.

Plaintiff's evidentiary showing is to the effect that she arrived in this
country from England in July, 1949, that she worked as a registered nurse
from the time of her arrival virtually continuously at various hospitals
until she was totally disabled by hypertension at age 29 in December,
1953; that she has been unable to engage in any gainful employment since
the onset of her claimed disability.

Plaintiff first contends that the social security regulations concerning
insured status for disability benefits are unconstitutional in that they
discriminate unfairly against immigrants who are disabled shortly after
their arrival in this country.

These regulations require that applicants have had earnings in covered
employment of more than $50 in 20 of the 40 quarters preceding the onset
of disability, or alternatively, if the applicant became disabled before
age 31, that she have had earnings of $50 or more in covered employment in
at least one-half of the quarters between the quarter following her 21st
birthday and the quarter in which her disability began in order to have
insured status and be eligible for disability benefits.

Plaintiff contends that in her case it would have been impossible for her
to have met these requirements because she had not been in the country for
the minimum number of quarters at the time she became disabled.

The test for determining the constitutionality of social security
statutes and regulations has been set forth by the Supreme Court in
Flemming v. Nestor, 363 U.S. 603 (1960), as follows:

Particularly when we deal with a withholding of a noncontractual benefit
under a social welfare program such as this, we must recognize that the
Due Process Clause can be thought to interpose a bar only i the statute
imposes a patently arbitrary classification, utterly lacking in rational
justification.

The rationale for the statutes and regulations in question has been
stated in Lerner v. Richardson, 393 F.Supp. 1387 (E.D.Pa. 1975) as
follows:

Congress has found it necessary to build into the Social Security System
a formula designed to prevent the dissipation of the Social Security Fund
by those groups who have made limited contributions to the fund and to
protect those individuals who have been in covered employment for a
considerable portion of their lives.

We conclude that the statutes and regulations in question do not involve
a patently arbitrary classification utterly lacking in rational
justification within the meaning of Flemming v. Nestor, supra, and
that they are not unconstitutional.

Since the statutes and regulation are valid, the only remaining question
i whether defendant's findings that plaintiff had earnings of $50 or more
in covered employment in only nine quarters is supported by substantial
evidence.

Plaintiff contends that the records of the Social Security
Administration, showing that she had only nine quarters of covered
employment prior to onset, are incorrect and that she should be credited
with the 17 quarters that would make her eligible under the alternative
method of computation set forth in the regulations.

20 C.F.R. 404.804 provides in part that "The absence of an entry as to an
individual's earning with respect to any period shall be evidence that the
individual with respect to any period had no earnings in such period;" 20
C.F.R. 404.804(a) provides that, after expiration of a time limitation of
three years, three months, and 15 days after the close of a calendar year,
during which an individual may request revision of her earnings record,
"the Administration's records . . . of the amount of earnings of an
individual during any period in such year shall be conclusive." 20 C.F.R.
404.804(b) provides that "The absence of an entry in the Administrations's
records as to the wages alleged to have been paid by an employer shall be
presumptive evidence that no such wages were paid to such individual in
such period."

These are reasonable regulations and, since there is no evidentiary
showing that the records are incorrect,they are accepted as correct and as
supported by substantial evidence.

There being no genuine dispute as to any material issue of fact,
defendant's motion for summary judgment should be, and hereby is, granted,
and the decision of the Secretary affirmed.

[1] Although both Parties have
moved for summary judgment, so much motion is required under 42 U.S.C. §
405(g), which states, in part, that "The court shall have the power to
enter, upon the pleadings and transcript of record, a judgment affirming,
modifying or reversing the decision of the Secretary, with or without
remanding the cause for a rehearing.

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